July 21, 2014

iPhone Charger Argument Overturns Murder Conviction

An error in a prosecutor's closing argument at a murder trial, and, of all things, an iPhone charger, have come together to overturn a murder conviction of a man accused of killing his youth mentor inside a vehicle. That vehicle had an iPhone charger in it, which became the focus of the appeal.

Facts of the Case

Defendant Antomar Jones was accused of killing a man, who was his youth mentor, inside of a vehicle. Jones' defense was that he killed nobody--he was inside the vehicle to purchase marijuana, and was just charging his phone. To counter his testimony and poke holes in it, the prosecution argued that the charger found in the dead man's car was an iPhone charger--not suitable for use in charging for Jones' phone, and therefore he couldn't have been charging his phone. Arguing that if a criminal defendant is lying about one thing, his credibility is at issue for other things.

The argument was made by the prosecutor during closing argument. The argument of the charger not being one for Jones' phone contradicted Jones' testimony and called his credibility into question. The jury convicted him of the murder, and Jones appealed.

Purpose of Closing Arguments

A closing argument is an argument given by parties to a jury at the conclusion of a case summarizing the evidence at trial. Closings can include a passionate argument and common sense inferences that can be drawn from the evidence in a case. What it can't contain, however, are arguments or references to facts or evidence that was never presented during the earlier stages of the trial.

The problem that caused the murder conviction to be overturned on appeal was that there was never any evidence presented during the trial that the charger was for an iPhone versus any other type of cellular phone. It was being argued by the prosecution for the first time at closing. And because it was made during closing for the first time, there was no opportunity by Jones' lawyers to refute the information or explain it away.

The Appellate court, in overturning the conviction, agreed with Jones on appeal, saying that the conflict in Jones' testimony was the centerpiece of the case, and the prosecutor improperly "won" the conflict in testimony by surprising Jones with the iPhone charger argument at closing.

A lawyer is allowed to ask a jury in closing arguments to make inferences based on their common knowledge and worldly experiences. The prosecution argued during the appeal that identifying the charger as an iPhone charger was something that an everyday person would recognize and be aware of as part of their common knowledge and daily experience. Therefore, the prosecution argued, there was no error in making the iphone charger argument for the first time at closing. That argument was rejected by the appellate court, which felt that identification of phone chargers was something that would need to be supported by evidence--not by jury inference.

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The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime and have experience protecting defendants' rights in trials. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

July 15, 2014

Supporters Come to Aid of Website Host Charged With Crime Related to Online Bitcoin Marketplace

Technology and criminal defense are merging in the case of a website owner who was arrested for conspiracy, computer fraud and other criminal charges. The criminal charges stem from a website that allowed users to buy and sell illegal drugs using the popular online currency Bitcoin. And now, crowdsourcing is helping the accused pay for his legal defense.

Owner of the Silk Road Facing Charges

Ross William Ulbricht owned and operated a website commonly known as the "Silk Road." The website allegedly allowed users to buy and sell items, including illegal drugs, anonymously. The site used the currency Bitcoin, a virtual, non-physical form of money that has been growing in popularity partly because its users can remain anonymous. In acting as a portal and virtual marketplace, the site allegedly collected fees to the tune of $1.6 billion in sales.

Ulbricht allegedly encountered a problem when a rogue user threatened to expose the identities of Silk Road users, unless he was paid a hefty ransom. Of course, doing so would entirely jeopardize the existence of the website, so Ulbricht allegedly used the site himself to find and hire a hitman to kill the rogue user. This wasn't difficult to do, thanks again to the website's anonymity, which allegedly allowed him to advertise and find the potential hitman to carry out the job. Ulbricht is presumed innocent of all allegations unless found guilty in a court of law.

Ulbricht's Rise to Fame

After his arrest, Ulbricht became somewhat of a hero to Bitcoin and former Silk Road users. Bitcoin users view Ulbricht as having sacrificed himself for the viability of the online, anonymous free market that Bitcoin users cherish. His supporters have even begun raising money for him to finance his criminal defense though crowdsourcing, which is an online public solicitation for individuals to make donations to a cause or business. Other operators of online anonymous portals have also donated money to Ulbricht's defense.

The case is also legally notable in that Ulbricht is being charged not just for allegedly trying to hire the hitman, but also for simply hosting the site that allegedly allowed others to make numerous illegal drug transactions. Rarely is a website owner criminally responsible for actions by others that occur on their own sites. Ulbricht's own attorney points out that being charged with criminal conspiracy and money laundering seemingly have nothing to do with hosting a website.

And then of course, there's the question of whether one can launder money using Bitcoin, which isn't legally recognized as a currency by the United States.

If he is found guilty, it could stifle other internet sites due to fears by web hosters of being liable for what users of their sites are doing and saying. Owners of controversial sites or those which may push the boundaries of the law but aren't necessarily illegal could be targets of criminal investigations. Hosting charges for websites that contain message boards or marketplaces could skyrocket, as many hosting services could refuse to host their sites for fear of liability.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today

July 8, 2014

United State Supreme Court Holds Police May Not Conduct Warrantless Searches Of Cell Phones Belonging To Arrestees

Late last year, this blog discussed a landmark opinion by the Maryland Court of Appeals in the case of Sinclair v. State of Maryland. In that case, that Court held that a police officer who has lawfully arrested an individual may conduct a search of that individual's cellular phone under an exception to the Fourth Amendment's general requirement that law enforcement obtain a warrant prior to conducting any search.

Earlier this week, the United States Supreme Court issued its own opinion addressing the same issue in Riley v. California, holding, contrary to the Maryland Court of Appeals, that police cannot search arrestees' cellphones without a warrant. This ruling has been hailed as a watershed moment by digital rights and privacy activists by setting a precedent that favors privacy.

Specifics of the Case

In Riley, the defendant, David L. Riley, was pulled over for a traffic violation in San Diego in 2009. During a search of Riley's vehicle, police found loaded guns. Following this discovery, Riley was placed under arrest and searched, which revealed items associated with the "Bloods" street gang. Riley's smartphone was also seized and police were able to access information on the phone that connected Riley to the street gang and a prior shooting. At trial, the smartphone evidence was used to convict Riley and he was sentenced to 15 years to life in prison. On appeal, the California Court of Appeal affirmed Riley's conviction.

Generally speaking, law enforcement officers are permitted to search arrestees without a warrant upon apprehension in the interest of officer safety and evidence preservation purposes. This exception to the warrant requirement is known as a "search incident to arrest." It was this exception that the State of California relied upon to argue that the officers had the right to search Riley's phone without a warrant. The Supreme Court didn't buy this argument.

Writing for a unanimous Court, Chief Justice John Roberts held that that searching a cellphone without a warrant constitutes a different, deeper privacy intrusion and that such a search serves neither the interests of protecting officer safety or evidence. The State argued that cellphones should not be treated differently from other objects found on an arrestee's person, such as a wallet. Rejecting this argument, Chief Justice Roberts opined that comparing a cellphone to a wallet "is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together."

Chief Justice Roberts concluded, "The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought...Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple--get a warrant."

Contact an Attorney Today

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

June 16, 2014

Maryland Court Of Appeals Reverses Criminal Defendant's Waiver Of Jury Trial

Recently, this blog discussed various aspects of a criminal defendant's constitutional rights to have a case tried before a jury under the Sixth Amendment to the U.S. Constitution. The Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..." The right to be tried by a jury, like many other constitutional rights, may be waived by a defendant so long as certain safeguards are observed to prevent abuse of such waivers.

Recent Example

Recently, the Maryland Court of Appeals was called upon to determine the validity of such a jury waiver in Szwed v. State. In Szwed, the defendant, James Szwed, was indicted for burglary in the first, third, and fourth degree, plus theft of property over $1,000, and malicious destruction of property. Prior to the commencement of a bench trial, Szwed's attorney stated to the court that he had discussed the possibility of a bench trial and Szwed indicated that he wanted to be tried by the judge, not a jury.

The court explained that, at a jury trial, the finding of guilt beyond a reasonable doubt would have to be unanimous to convict Szwed, whereas, with a bench trial, the judge had to be certain beyond a reasonable doubt, with the difference being that it was one individual as opposed to twelve jurors rendering a verdict. Szwed affirmed that he understood these differences and elected to have a bench trial. The Court then found that Szwed had freely and voluntarily waived his right to a jury trial. Following the bench trial, the court found Szwed guilty of all counts and sentenced him to total of 15 years incarceration.

Szwed appealed, arguing that the trial court had erred in accepting his waiver of a jury trial. Maryland's Court of Special Appeals determined that Szwed was not able to challenge the waiver on appeal because his attorney had not objected, and even if the issue was preserved for appeal purposes, that the trial judge had sufficiently complied with rules governing waivers of jury trials.

On further appeal, Maryland's Court of Appeals explained that the trial court was obligated to follow Maryland Rule 4-246(b) in determining whether Szwed had properly waived his right to a jury trial. Maryland Rule 4-246(b) requires a trial court to engage in the process established by the rule, and state the trial court's findings that the criminal defendant's waiver of his right to a jury trial was made both knowingly and voluntarily. The Court of Appeals held that because the trial court had not explicitly found that Szwed's waiver was made "knowingly," the jury waiver was invalid. The Court of Appeals then reversed the convictions and remanded the case for a new trial.

Seek Help from a Criminal Defense Attorney

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

June 3, 2014

Maryland Court Of Appeals Holds That DWI's Suspects' Right To Counsel Is Limited In Administrative Actions

Earlier this year, this blog discussed oral arguments heard by the Maryland Court of Appeals in the case of Motor Vehicle Administration v. Deering, in which it had been called upon to decide whether law enforcement officers can deny a motorist's request to consult with an attorney prior to submitting to a blood alcohol concentration (BAC) test. Last week, the Court issued a controversial decision in the case, holding that drivers in Maryland impliedly consent to take a BAC test at a police officer's request as a condition of having their license, and by providing such consent, essentially waive their right to counsel.

The case stems from a May 3, 2012, traffic stop of April Marie Deering by a Fruitland, Maryland police officer. The officer placed Deering under arrest for DWI and transported her to the Maryland State Police barracks where he asked her submit to a breathalyzer test to determine her blood alcohol content. Deering requested that she be permitted to call her attorney prior to taking the test, but the officer refused. After the officer read a written statement informing Deering that the penalty for refusing to take the test was automatic suspension of her license, Deering took the test, showing a BAC reading of 0.16, more than twice the legal limit in Maryland.

Maryland's "implied consent" law states that a motorist that has been lawfully stopped and detained by a police officer, who has probable cause to believe that the individual has been driving while intoxicated, has impliedly consented to submit to a chemical test of his or her blood, breath, or urine for the purposes of determining blood alcohol content. Refusing to submit to a chemical test automatically results in an administrative license suspension of 120 days for a first offense and one year for subsequent offenses. Police are required to notify DWI suspects of the consequences of a refusal to submit to a chemical test.

Prior to trial, Deering moved to suppress the BAC results, and the trial judge agreed, holding that Deering had a right to call her attorney. The trial court then overturned Deering's 90-day license suspension, which an administrative law judge had imposed. In a 7-0 decision reversing the order to overturn Deering's license suspension, the Court of Appeals distinguished the administrative penalty of a suspended license from a criminal prosecution for aleged drunk driving. The Court recognized that while under the Court's holding in Sites v. State drivers do have a due process right to consult an attorney when a positive blood-alcohol test could result in prosecution, in the context of an administrative proceeding due to Maryland's implied consent law, no such right exists.

Writing for the Court, Judge McDonald opined, "A driver's interest in the continued right to drive in Maryland is certainly an important one that can affect the individual's ability to work and otherwise function in society. That interest must be weighed against the public interest to deter drunk driving and to protect the public, not to mention the impaired driver, from the consequences, often fatal, of impaired driving."

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been accused of DWI or DUI. If you or someone you know has been charged with a DWI or DUI in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

May 28, 2014

Maryland Court Of Special Appeals Considers Constitutional Right To Trial By Jury

The right to be represented by counsel arises under the Sixth Amendment to the United States Constitution, as does another important constitutional right, which was recently addressed by the Maryland Court of Special Appeals: the right to have a case tried to a jury. The Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..."

In Abe v. Maryland, the defendant, Stephanie Ann Abe, was charged in the District Court for Allegany County with theft of property valued at less than $100, which is punishable by "imprisonment not exceeding 90 days or a fine not exceeding $500 or both." After Abe requested a jury trial, her case was forwarded to the circuit court. The circuit court remanded the case back to the District Court, holding that Abe was not entitled to a jury trial because the maximum penalty for theft charge did not exceed 90 days imprisonment.

Maryland Code § 4-302(e)(2)(i) provides, "[U]nless the penalty for the offense with which the defendant is charged permits imprisonment for a period in excess of 90 days, a defendant is not entitled to a jury trial in a criminal case."

Abe appealed the denial of a jury trial to the Maryland Court of Special Appeals, arguing that she had a constitutional right to trial by jury. In concluding that Abe was not entitled to a jury trial for the theft charge, the Court of Special Appeals analyzed three factors:

• Was the petty offense subject to decision by justices of the peace, or was it an offense historically tried before juries?
• Was the accused subject to an infamous penalty, i.e. a significant penalty imposed by statute or incarceration?
• Was the offense considered serious?

The Court concluded that petty theft was historically tried before justices of the peace and not to a jury, thereby suggesting that a jury trial would not be appropriate in Abe's instance. The Court did recognize that theft had always been considered a serious offense, however, petty theft was divided into two categories: one that provided for a more serious sentence of imprisonment not exceeding 18 months, and the other a less serious sentence, imposing imprisonment not exceeding 90 days. The Court resolved that, because Abe's offense was punishable only by a maximum prison sentence of 90 days, it was a less serious offense to which the right to a jury trial did not attach.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

May 13, 2014

Maryland Prosecutors To Deal With New Issues Associated With Decriminalization Of Marijuana

Last February, this blog discussed Maryland Senate Bill 297, which proposed to eliminate the potential for jail time as a punishment for possession of marijuana in favor of a maximum fine of $100, and remove the offense of marijuana possession, less than ten grams, from the state criminal code. On April 14, 2014, a similar piece of legislation, Senate Bill 364, which decriminalizes marijuana, was signed into law by Maryland Governor Martin O'Malley, and will become effective October 1, 2014.

The new law reduces the penalty for possessing less than 10 grams of marijuana from a criminal to a civil offense. First-time offenders face fines up to $100, while a second offense is punishable with a fine up to $250, and subsequent offenses up to $500. The new law also mandates that third-time offenders or offenders under the age of 21 be evaluated for substance abuse problems and attend drug education classes.

The current statute in effect makes possession of marijuana less than 10 grams a criminal misdemeanor with possible jail time of 90 days and or a $500 fine. Under current Maryland Annotated Code §5-601, a person who uses or possesses marijuana, more than 10 grams, is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both on a first offense. However, felony possession of marijuana with intent to distribute, manufacture, traffickers of marijuana, individuals in possession of large amounts of marijuana, or those who have previously been convicted of drug offenses may be subject to prosecution for more serious offenses with harsher penalties.

Prosecutors are struggling to address several challenges that they anticipate will arise due to the provisions of the new law. Although the law decriminalizes possession of small amounts of marijuana, possession of rolling papers, pipes and other marijuana accessories will remain a criminal offense. This means that a person could be charged criminally for the rolling papers used to make a joint, but not the marijuana inside if it is less than 10 grams.

Another problem for prosecutors will be determining when to charge an individual with the graduated fines that are supposed to be imposed for repeat offenders. According to a statement made by Baltimore County prosecuting attorney Scott Shellenberger, it will be difficult for law enforcement to establish whether an individual has been charged with marijuana possession before because prior offenses will not be documented in the criminal database.

A number of prosecutors from across the state sent Governor O'Malley a letter urging him not to sign the bill, arguing that it was passed too hastily. "Clearly we could've gotten a better bill than this," commented Shellenberger. Shellenberger stated that Maryland's prosecutors will send out guidelines for enforcing the new law, but all of the counties could not agree whether or not to arrest individuals for carrying marijuana accessories.

Senator Bobby Zirkin of Baltimore County, the Bill's chief sponsor, indicated that the criminal penalties for possession of marijuana paraphernalia were intentionally left alone, stating that doing so would ensure that if police observe marijuana paraphernalia in a suspect's vehicle, there would be legal grounds to conduct a search of the car. Zirkin stated that the legislature would consider eliminating penalties for marijuana paraphernalia next year.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending individuals charged with drug crimes in both state and federal courts. If you or someone you know has been charged with a drug crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

April 28, 2014

United States Supreme Court Rules Anonymous 911 Call Sufficient For Police To Conduct Traffic Stop

On April 22, 2014, the United States Supreme Court issued landmark decision in the case of Navarette v. California, holding that police are permitted to conduct a traffic stop of a suspected intoxicated motorist based solely on an anonymous tip by a 911 caller. In Navarette, the defendant, Prado Navarette, was stopped by a California Highway Patrol officer because the car he was driving matched the description of a vehicle that a 911 caller had reported as having run her off the road. Upon approaching Navarette's vehicle, the officer smelled marijuana, and searched the truck's bed, discovering 30 pounds of marijuana.

Navarette filed a motion to suppress the marijuana, arguing that the traffic stop had violated the Fourth Amendment. The trial court denied the motion, holding that the officer had reasonable suspicion to conduct the traffic stop based on the information provided by the 911 caller. Navarette pleaded guilty to transporting marijuana and was sentenced to 90 days in jail and three years of probation.

On appeal to the U.S. Supreme Court, Navarette again argued that the traffic stop had violated his Fourth Amendment rights because the 911 caller's tip was insufficient to establish reasonable suspicion that Navarette was engaged in criminal activity. The authority of police to conduct traffic stops derives from the United States Supreme Court case Terry v. Ohio, 392 U.S. 1 (1968), in which the Court held that police may briefly detain a person whom they reasonably suspect is involved in criminal activity.

With Justice Thomas authoring the 5-4 opinion for the majority, the Court voted to affirm Navarette's conviction, opining that "under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspi¬cion that the driver of the reported vehicle had run another vehicle off the road."

The Court reasoned that the 911 tip was reliable, because 911 calls are recorded and the phone number of the 911 caller is passed on to the dispatcher. The Court further concluded that the 911 caller's reliability was supported by the fact that law enforcement officers were able to corroborate some of the facts reported by the 911 caller.

Justice Scalia delivered a scathing dissenting opinion, arguing that the majority built its constitutional conclusion on a series of weak findings. Scalia wrote, "After today's opinion, all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving." Scalia concluded, "The Court's opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity..."

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

April 14, 2014

United States Supreme Court Address Requirements For Conviction Of Federal Firearm Charges

Last month, the United States Supreme Court issued an important opinion in the case of Rosemond v. United States, holding that the trial court failed to properly instruct a jury of the elements of an "aiding and abetting" charge and reversing the defendant's conviction as a result of said impropriety.

In Rosemond, the defendant, Justus Rosemond, was in a car with two other men, all of whom were attempting to sell marijuana to another individual. At some point during the transaction, the buyer punched one of the sellers in the face and fled with the drugs. One of the sellers fired several shots from a handgun at the thief, then all the sellers got back into the vehicle and gave chase. Before the three caught up to the thief, however, they were pulled over by a police officer.

Rosemond was charged federally with using a gun in connection with a drug trafficking crime and aiding and abetting that offense. Federal law makes it a special crime to commit a drug offense while using a gun, and allows a court to impose an extra five year prison term for the gun charge. In prosecuting Rosemond, the Government argued that he was the shooter; however, because several witnesses disputed the shooter's identity, the Government also contended that, even if Rosemond was not the shooter, he had aided and abetted the offense and was therefore punishable as if he had been the shooter.

At trial, Rosemond requested that the trial court instruct the jury that, in order to find him guilty of aiding and abetting, it had to find that he "intentionally...facilitate[d]...the use of the firearm." Despite this request, the trial court instructed the jury that it need only determine that Rosemond "knew his cohort used a firearm" and that he "actively participated in the drug crime." Rosemond was convicted of aiding and abetting and the trial court imposed a consecutive sentence of 10 years of imprisonment.

On appeal to the U.S. Supreme Court, Rosemond argued that he had no idea that a gun would be used in the crime and it was error for the trial court not to instruct the jury that Rosemond had to know ahead of time about the firearm to convict him of the gun charge.

In a 7-2 decision, the United States Supreme Court reversed Rosemond's conviction, holding that, in order to be properly convicted as an aider and abettor, Rosemond had to have "foreknowledge" that one of his cohorts would use a gun, not just that a drug deal would occur. The Court concluded that the trial court had instructed the jury that it was enough that Rosemond knew of the drug crime and that "his cohort used a gun", not that he knew that his companion would use a gun. Essentially, the Court held that the Government had to prove that Rosemond knew in advance that someone else would use a gun, and far enough in advance so that he could withdraw from the crime if he so chose.

The knowledgeable attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending individuals that have been charged with state and federal crimes, including cases involving mandatory or enhance penalties. If you or someone you know has been charged with a crime, contact the attorneys of Brassel, Alexander & Rice, LLC today.

April 1, 2014

United States Supreme Court Holds Police May Conduct Warrantless Search Of Home Over Objection Of Resident

Last month, the United States Supreme Court issued a controversial opinion in the case of Fernandez v. California, holding that police officers may enter and search an individual's residence without a warrant and over his or her objection, as long as another occupant of the home gives consent.

In Fernandez, Los Angeles police officers confronted the defendant, Walter Fernandez, who was suspected of involvement in a robbery, at his home. After Fernandez complained to that the officers didn't have any right to enter his home, they placed him under arrest after observing circumstances that led them to believe he had beaten his girlfriend. After transporting Fernandez to the police station, the officers returned to Fernandez's home, where his girlfriend allowed them to enter and search the premises. While inside, the officers discovered weapons and other evidence linking Fernandez to the robbery.

Fernandez moved the trial court to suppress the evidence discovered in his home, arguing that the police should have obtained a warrant to conduct the search. A motion to suppress is a request to a judge for an order excluding evidence from being consideration by the judge or jury at trial. Usually, the basis for exclusion arises from a violation by law enforcement of a criminal defendant's rights under the U.S. or state constitution. The trial court denied the motion and, following a trial, Fernandez was convicted of multiple charges and sentenced to 14 years in prison.

On appeal, the California Court of Appeal affirmed, holding that, because Fernandez was not present when his girlfriend consented to the search, the general rule that police cannot search a home over the objection of a resident did not apply. Fernandez then appealed again to the U.S. Supreme Court.

The Supreme Court agreed with the California Court of Appeal, holding that the police were not required to obtain a warrant for Fernandez's residence, because the consent of any occupant of a home is sufficient to validate a search. Writing for the majority, Justice Samuel A. Alito Jr., argued that "A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant." Alito contended that as a resident of the home, Fernandez's girlfriend possessed her own right to consent to the search, stating "Denying someone in [her] position the right to allow the police to enter her home would also show disrespect for her independence."

Dissenting Justices Ginsburg, Sotomayor and Kagan, opined that "the police could readily have obtained a warrant to search the shared residence" and should have done so. Ginsburg opined, "Instead of adhering to the warrant requirement, today's decision tells the police they may dodge it."

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

March 18, 2014

Maryland High Court Considers Constitutional Right To Fire Legal Counsel

Earlier this month, this blog discussed new legislation that had been introduced in the Maryland General Assembly designed to encourage defendants charged with criminal offenses to waive their constitutional right to be represented by legal counsel at initial bail hearings. In a similar vein, the Maryland Court of Appeals issued a ruling late last month, examining the circumstances under which a criminal defendant is entitled to fire his retained counsel in favor of another attorney and a trial court's obligation to the defendant under such circumstances.

Gambrill v. State

In Gambrill v. State, CA No. 42, the defendant, Michael Gambrill, was charged with misuse of telephone facilities and harassment, both misdemeanors carrying minor penalties. Gambrill, however, was also on probation, with a 14-year prison sentence suspended. On the day of trial for the misdemeanor offenses, Gambrill's public defender moved the trial court to postpone the trial so that Gambrill could retain private counsel to represent him. The trial court denied the request, and, following a jury trial, Gambrill was convicted on both charges.

On appeal, Gambrill argued that the court denied his request to obtain private counsel without complying with the requirements of Rule 4-215(e), which requires a court to allow a defendant wishing to discharge his counsel to explain the reasons for the request and, if necessary, continue the action to allow the defendant to retain new counsel. In response, the State contended that Gambrill's request was only to postpone the trial, and therefore did not implicate Rule 4-215(e).

Opinion of the Court of Appeals

In its opinion, the Court of Appeals began by recognizing that criminal defendants have a right to counsel conferred by the Sixth Amendment to the United States Constitution and the U.S. Supreme Court opinion in Gideon v. Wainwright. Discussing the relationship between the right to counsel and Rule 4-215(e), the Court opined that an accused has both a constitutional right to have the effective assistance of counsel and to reject that assistance and defend himself, stating that Maryland Rule 4-215 was adopted to implement those constitutional guarantees.

Most importantly, the Court acknowledged how a defendant's explanation of his reasons for discharging counsel played a "pivotal role" in giving "practical effect" to the defendant's constitutional choices regarding his Sixth Amendment rights. In light of the importance of these choices, the Court held that a request to discharge counsel is "any statement from which a court could conclude reasonably that the defendant may be inclined to discharge counsel." In the event such a request is made, the trial court must engaged in a discussion with the defendant under Rule 4-215(e) to ascertain the reasons for asking for the discharge.

Ultimately, the Court held that, although Gambrill's request to hire a new attorney may not have been clear, such "inherent ambiguity" did not relieve the judge of his obligation to comply with Rule 4-215(e). The Court concluded that, "To hold otherwise would be to thwart the very purpose of Rule 4-215(e), which is to give practical effect to Gambrill's constitutional options."

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

March 7, 2014

Maryland Legislators To Consider Bill Curtailing Constitutional Right To Counsel

Late last month, a bill was introduced in the Maryland General Assembly that would encourage defendants charged with crimes to waive their constitutional right to be represented by legal counsel at initial bail hearings.

Under the current pre-trial release system in Maryland, initial bail hearings are presided over by District Court commissioners around the clock. Senate Bill 748, seeks to change that, limiting the availability of commissioners for bail hearings to regular business hours, from 9 a.m. to 5 p.m., unless the defendant waives his right to be represented by the public defender or has retained private counsel.

The Sixth Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence." In the case Gideon v. Wainwright, the U.S. Supreme Court interpreted this to mean that "lawyers in criminal courts are necessities, not luxuries," holding that a defendant unable to retain counsel has the right to appointed counsel at the government's expense, for situations in which the defendant faces imprisonment greater than one year.

The Bill was introduced in response to a recent ruling by the Maryland Court of Appeals in DeWolfe v. Richmond, in which the Court held that indigent defendants have a right to be represented by public defenders at bail hearings before commissioners. The Court clarified that the right to counsel applies "in any proceeding that may result in the defendant's incarceration." The Court of Appeals stayed implementation of the DeWolfe decision, while it considers the state's appeal of Baltimore City Circuit Judge Alfred Nance's January Order that attorneys be provided for indigent defendants at any time.

According to Senator Robert Zirkin, the Bill's sponsor, "You have the right to counsel available to you. You may have to wait 12 hours (to see a commissioner). Or you can waive your right to counsel and do it quickly." Zirkin claims that the Bill would save Maryland the almost $30 million that the Public Defender's Office estimated it would cost to comply with the Court's decision in DeWolfe, by not requiring counsel to be present at the 177,000 initial bail hearings each year.

Sen. Brian E. Frosh, has introduced a related measure, Senate Bill 973, which would create pretrial release programs that would determine if a defendant qualifies for release pending trial. Under Frosh's program, defendants charged with violent crimes or sex crimes would not be eligible for pretrial release and would be taken before a judge, not a commissioner, to set bail. Zirkin has been critical of Frosh's legislation, arguing that "It would be foolish to try to overhaul the criminal justice system as we know it in the next two months" before the General Assembly's current session ends.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

February 17, 2014

Maryland High Court Discusses Assertion Of Miranda Rights In Criminal Prosecutions

Last fall, the Maryland Court of Appeals issued an opinion in the case of Browne v. State (2013), discussing the circumstances under which a suspect of a crime is entitled to be advised of his Miranda rights prior to being questioned by law enforcement officers.

In Browne, the defendant, Donald Browne, was implicated in a home invasion by DNA evidence discovered on gloves left by him at the scene of the incident. Browne was convicted after a jury trial of a number of criminal offenses, including robbery with a dangerous weapon and use of a handgun in the commission of a felony or crime of violence, burglary, false imprisonment, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm after conviction of a qualifying crime. Browne was later sentenced to a total of 40 years in prison.

Prior to trial, Browne moved to suppress several oral statements he made to one of the police officers investigating the incident. The officer interviewed Browne at the Baltimore County Detention Center, where Brown was being held on unrelated charges, in a small visiting room.

During the interview, the officer informed Browne that he was investigating a case "where [Browne's] name had come up." Browne asked the officer why he was being questioned and in what nature his name had come up. The officer then read Browne his Miranda rights, advising Brown he could talk to an attorney before and during questioning.

Miranda warnings are given by law enforcement officers to criminal suspects in police custody prior to being interrogated, advising them of certain constitutional rights they possess, including the right to remain silent, the right to consult with an attorney and to have that attorney present during questioning, and the right to have an attorney provided at no cost. Browne responded that, although he had a lawyer, he would talk with the officer.

The officer then interviewed Browne for ten to fifteen minutes. At some point during the interview, Browne admitted that he had worked on a paving job at a drag-racing strip owned by the victim of the robbery. Following this admission, the officer informed Browne that his DNA had been recovered from the gloves, after which Browne asked to speak to his attorney.

In arguing to suppress his statements made during the interview, Browne contended that he had informed the officer that he had a lawyer and that he would like for his lawyer to be there for the questioning. In denying Browne's motion to suppress, the trial court found that Browne had been properly advised of his Miranda rights and voluntarily agreed to talk with the officer without his attorney present.

In affirming the trial court's denial of Browne's motion to suppress, the Maryland Court of Appeals held that the trial court was entitled to credit the officer's testimony that Browne voluntarily participated in the interview and did not invoke his right to counsel until the interview was underway, and when he did so, the interview was halted. The Court went on to determine that, because Browne did not unequivocally assert his rights to remain silent and right to an attorney prior to commencing the interview, the statements he made were admissible.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

February 4, 2014

Maryland High Court Holds Police May Not Tase Suspects Without Probable Cause to Arrest

In 2012, the Maryland Court of Appeals issued an opinion in the case of Reid v. State (2012) 428 Md. 289, discussing what measures law enforcement officers are permitted to use to detain a suspect without converting an encounter into an arrest. In Reid, the defendant, David Reid, was convicted on an agreed statement of facts of wearing, carrying, or transporting a handgun, and of being in possession of a handgun after conviction of a disqualifying offense. The statement of facts alleged that Baltimore City police received an anonymous phone call that a tall, black man was armed, and was selling drugs at a particular location.

Upon responding to the reported location, police officers observed and approached Reid, who turned away from the officers. As the officers approached Reid, he fled. The officers yelled for Reid to stop and, when he did not, the officers fired a taser into his back. During a subsequent search, the officers discovered a firearm in Reid's pocket.

Prior to trial, Reid filed a motion to suppress the firearm. The trial court denied Reid's motion, holding that the officers had reasonable articulable suspicion to effectuate a "Terry stop" on Reid, and the use of the taser did not convert the stop into an arrest.

A "Terry stop" is a brief detention of a person by police officers based on a reasonable suspicion that the individual is engaged in criminal activity. The authority for a Terry stop derives from the United States Supreme Court case Terry v. Ohio, 392 U.S. 1 (1968), in which the Court held that police may briefly detain a person whom they reasonably suspect is involved in criminal activity, and may also conduct limited search of the suspect's outer garments for weapons, if they have a reasonable and articulable suspicion that the person detained may be "armed and dangerous."

On appeal, the Maryland Court of Appeals recognized that, although "the use of drawn weapons or handcuffs does not per se convert a Terry stop into an arrest...a person shot in the back with two metal darts...would reasonably believe that he or she was not free to leave the encounter."

The Court held that the degree of force used to detain Reid elevated the detention to a de facto arrest, requiring a finding of probable cause. Probable cause has been commonly defined as "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true." Essentially, this means that a police officer has to have information sufficient to support a prudent person's belief that an individual has committed a crime. The Court concluded that, because the officers lacked probable cause to arrest Reid at the time they tased him, the handgun found on him should have been suppressed.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

January 20, 2014

Maryland Court Of Appeals Called Upon To Determine Extent Of DWI's Suspects' Right To Counsel

Last week, the Maryland Court of Appeals heard oral arguments in the case of Motor Vehicle Administration v. Deering, and was called on to decide whether law enforcement officers can deny a motorist's request to consult with an attorney prior to submitting to a breath-alcohol content (BAC) test.

The case stems from a May 3, 2012, traffic stop of the defendant by a Fruitland, Maryland police officer. The officer placed the defendant under arrest for DWI and transported her to the Maryland State Police barracks in Princess Anne. Upon arrival at the barracks, the officer asked the defendant to submit to a breathalyzer test to determine her blood alcohol content.

The defendant asked the officer to allow her to call an attorney prior to taking the test, but the officer refused. After the officer read a written statement informing the defendant that the penalty for refusing to take the test was automatic suspension of her license, the defendant took the test. The result of the test showed the defendant's BAC to be 0.16, more than twice the legal limit in Maryland.

Maryland's "implied consent" law states that a motorist that has been lawfully stopped and detained by a police officer, who has probable cause to believe that the individual has been driving while intoxicated, has impliedly consented to submit to a chemical test of his or her blood, breath, or urine for the purposes of determining blood alcohol content.

Refusing to submit to a chemical test automatically results in an administrative license suspension of 120 days for a first offense, and one year for subsequent offenses. Police are required to notify DWI suspects of the consequences of a refusal to submit to a chemical test.

In this case, the defendant argued that the police officer's refusal to allow consultation with an attorney prior to taking the breath test violated the right to due process under the United States and Maryland Constitutions. The defendant's argument was met with skepticism by Chief Judge Mary Ellen Barbera, who commented that Maryland drivers impliedly consent to submitting to a BAC test as a condition of having a license, and that the right to due process does not apply when consent has already been given.

The National College for DUI Defense and the Maryland Criminal Defense Attorneys' Association have voiced support for the defendant's position in a joint friend-of-the-court brief. The brief states, "[t]he manner in which the officer reads the form can...detract from its ability to be understood. Additionally, most [DWI] suspects have no legal training or understanding to assist them in making an intelligent decision, that usually occurs late at night, when they are tired, afraid, upset and traumatized."

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been accused of DWI or DUI. If you or someone you know has been charged with a DWI or DUI in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.